Citation Nr: 22016394 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-39 389 DATE: March 22, 2022 ORDER An initial evaluation more than 10 percent for service-connected gastroesophageal reflux disease (GERD) is denied. Service connection for a left knee condition is denied. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's GERD has been manifested by nausea, and reflux; it is not shown to have been manifested by symptom combinations productive of considerable or severe impairment of health. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7399-7346. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 2002 to January 2006, and the United States Army from January 2010 to December 2010. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal. The Veteran died in February 2019; his mother, the appellant listed above, has been properly substituted in his place. This matter is before the Board of Veterans' Appeal (Board) on appeal from a December 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The appellant appeared at a Travel Board hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is in the claim file. Increase Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an evaluation greater than 10 percent for service-connected GERD. The Veteran's GERD is rated under DC 7346, used to rate hiatal hernia. There is no specific diagnostic code for GERD, which would be rated by analogy to DC 7346 in any case, for listed symptoms including dysphagia (difficulty swallowing), pyrosis (heartburn or reflux), and regurgitation, among others. The Board finds that DC 7346 most nearly approximates the Veteran's symptoms. Under 38 C.F.R. § 4.114, used for rating disorders of the digestive system, a 60 percent rating is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (acid reflux), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted where there are two or more of the symptoms for the 30 percent evaluation, but of less severity. The Veteran's GERD is currently rated as 10 percent disabling. The appellant asserts that the symptomatology of the Veteran's GERD presented a greater degree of impairment than the currently assigned evaluation suggests. The question for the Board is whether the Veteran's service-connected GERD resulted in is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (acid reflux), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Turning to the relevant medical evidence, during the December 2014 VA examination, the Veteran reported experiencing the occasional reflux and night-time nausea. He also endorsed the use of medications to control the GERD symptoms. The Veteran reported experiencing more than 4 episodes of nausea and one occasion of vomiting over a year. The VA examiner found that the Veteran's GERD did not impact his ability to work. Review of the Veteran's available treatment records reveals that that the Veteran's GERD was controlled and stable with the use of medication. The Veteran denied the episodes of frequent heartburn, nausea, or dysphagia. See November 2019 CAPRI. Viewing the evidence, the Board finds that the Veteran's disability picture does not more nearly approximate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. The evidence does not show that the Veteran experienced persistently recurrent epigastric distress. In the December 2014 VA examination, the Veteran only endorsed occasional episodes of reflux and nausea. His treatment records show that his condition was stable and controlled with medications. The Veteran did not experience recurrent epigastric distress with dysphagia, anemia, weight loss, or nausea due to his GERD. There is no medical evidence that the Veteran's GERD is productive of considerable impairment of health. The Board acknowledges that the appellant is competent to report the symptoms that Veteran experienced due tohis service-connected GERD. See October 2021 Board Hearing Transcript, Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered the reports of the Veteran's symptoms. The appellant is also credible in her belief a higher rating is warranted. However, the Board places a greater weight on the competent findings of record provided by medical professionals, given the professionals' expertise in evaluating gastrointestinal disorders. The probative evidence does not support a finding that a disability rating in excess of the one granted herein is warranted for the service-connected GERD. Accordingly, the Board finds that the Veteran's disability is appropriately rated as 10 percent. The preponderance of the evidence is against the assignment of a rating in excess of 10 percent for GERD. As the evidence is not in approximate balance, the benefit of the doubt rule is not for application. Service Connection 2. Entitlement to service connection for left knee condition. The Appellant is seeking service connection for disability of the Veteran's left knee. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service. Based on the evidence of record, although the Veteran did not have a diagnosis related to his left knee. The December 2014 VA examiner found that the Veteran did not have a diagnosis of a left knee disability. The VA examiner provided that the x-ray and MRI of the Veteran's left knee were both normal. The Veteran exhibited full flexion and extension. The VA examiner acknowledged the Veteran's complaints of knee pain but found that "there is no pathology present that would explain the Veteran's complaints of knee pain." While the Appellant contends that the Veteran has a current left knee disability, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 Fed. Cir. 2007). While the Board recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity; however, the evidence of record does not show that pain of the left knee amounted to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Veteran exhibited full degrees of flexion and extension during the December 2014 VA examination. His treatment records do not contain any indication that the Veteran's left knee pain resulted in functional impairment of earning capacity. In sum, the appellant has not satisfied the necessary element of a present disability with respect to the claimed left knee disability, and thus, further discussion of the in-service incurrence or nexus elements is unnecessary. (Continued on next page) Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a left knee condition. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.